Employment Law Update 2011-2012
February 29, 2012 |There were a large number of new state and federal employment laws, employment regulations and court decisions in 2011-2012 involving employment law which affects both employers and employees. Lawyers must be aware of these new issues when representing their clients and law firms as employers must comply with these new requirements. This article will briefly summarize some of these new laws, decisions and trends. The other articles in this special labor and employment law section will examine in more detail specific employment law and employment litigation issues for 2012.
Several new state laws and federal regulations impose new notice, disclosure and record keeping requirements on employers. For example, the New York Wage Theft Protection Act requires employers to obtain and maintain written notices signed by all employees in a language they understand regarding their pay rates, overtime pay and eligibility, paydays and other wage information. These notices must be maintained by employers for at least six years.
Additionally, effective April 30, 2012, a new National Labor Relations regulation requires both union and non-union employers to post notices in the workplace regarding the rights of workers to unionize and to engage in protected concerted activity under the National Labor Relations Act. New regulations regarding pension and benefit plans also mandate new disclosure requirements and expand the definition of fiduciaries under the Employee Retirement Income Security Act. Failure to comply with these and other new state and federal employment laws, regulations, notice and document requirements can lead to substantial penalties and liabilities.
The United States Supreme Court also issued several new employment decisions in 2011 and 2012. Several of these decisions make it easier for employees to sue employers for employment discrimination and retaliation, while other decisions make it harder to sue religious employers and more difficult to certify employment discrimination class actions against employers. For example, in Kasten v. Saint Gorbain Performance Plastics Corp., 131 S. Ct.1325 (2011), the Supreme Court once again expanded protections against retaliation to persons who complain about statutory violations by holding that employees who make oral complaints under the FLSA are protected in the same manner as if the complaint was written. Further, in Thompson v. North American Stainless, LP, 130 S. Ct., 3542 (2011), the court held that the fiancée of an employee who complained about Title VII violations was entitled to protection under Title VII provisions which prohibit retaliation. These recent decisions continue the trend of recent Supreme Court decisions expanding the scope of coverage for retaliation claims.
Meanwhile, in Walmart Stores v. Duke, 131 S.Ct. 2541 (2011), the Supreme Court placed limits on employment class actions in denying the certification of a class action for 1.6 million women against Walmart for gender discrimination in employment. While this decision is expected to reduce or limit class actions of employment discrimination claims, the impact on other types of class actions is unclear. For example, some lower courts have found the Walmart decision not to be applicable to wage hour class actions under the under the Fair Labor Standards Act (“FLSA”), while other courts have found Walmart to be controlling in FSLA actions.
Additionally, several new court decisions in 2011 and 2012 ruled in favor the arbitrations and/or upheld the arbitration of employment disputes. For example, in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 45 (2011), the Supreme Court held that the Federal Arbitration Act preempted California court decisions voiding contracts containing arbitration provisions waiving class actions. Further, Dauod v. Ameriprise Financial Services, 18 Cases 2d 425 (S.D. Cal, 2011), a federal district court upheld an arbitration provision and class action waiver clause in an employment agreement between financial advisor and financial services firm regarding disputed FLSA claims. Additionally, in Zaken v. Jenny Craig, 113 FEP Cases 1144 (E.D.N.Y. 2011), Soto Fonalledos v. Ritz Carlton San Juan Hotel and Casino, 640 F 3d 471 (1st Cir. 2011), Hook v. UBS Financial Services, 32 IER 414 (D. Conn. 2011), Thompson v. Air Transport Intl. LLC, 18 WH Cases 3d 872 (8th Cir. 2011) and Teah v. Macys Inc., No. 11-01356 (E.D.N.Y. Dec. 19, 2011), several federal district and appeal courts upheld arbitration provisions regarding various employment discrimination, wage, FMLA and other types of employment claims.
The National Labor Relations Board (the “NLRB”) issued several new decisions and regulations in 2011 which make it easier for employees to unionize and to complain about working conditions. On the other hand, the NLRB and the courts also limited certain remedies to employees asserting unfair labor practices and violations of the National Labor Relations Act (the “NLRA”).
The NLRB issued new rules and procedures in 2011 designed to speed up elections to determine union representation. Additionally, in Specialty Healthcare the NLRB made it easier for unions to organize by reversing a 1991 decision and expanding the number of potential bargaining units in non-acute health care facilities such as nursing homes. Further, in Lamons GasketCo., 357 NLRB No.: 72 (2011), the board reversed a 2007 decision and barred challenges to voluntary recognition of unions for at least six months from the date of the first bargaining session.
The NLRB also issued a new regulation in 2012 which requires both union and non-union employers to post notices advising employees of their right to unionize and to engage in concerted activity. The NLRB posting rule is schedule to take effect April 30, 2012 but this regulation is currently subject to pending litigation challenges.
The NLRB also issued decisions in 2011 which protected the rights of employees to engage in concerted activities on social media, i.e., Hispanics United of Buffalo, Inc., 3-CA-27872 (Sept. 26, 2011). Further, in Allied Mechanical Services, 357 NLRB No. 101 (2011), the NLRB held that frivolous employer lawsuits can constitute unlawful retaliation under the NLRA.
On the other hand, in Mezonos Maven Bakery, 357 NLRB No. 47 (2011), the NLRB held that undocumented workers whose rights were violated under the National Labor Relations Act could not recover back pay even where the employer knew of their illegal immigrant status. Additionally, in Deming Hospital v. NLRB, 192 NLRB No. 235 (2011), a back pay award to an employee in an unfair labor practice proceeding was remanded due to the failure to take into account interim earnings of the employee.
There are also several noticeable trends in employment law and employment litigation in 2011 and 2012. These trends include increased employment discrimination and retaliation claims and protections. In fact, the EEOC received almost 100,000 charges from September 2010 to September 2011, the most in its 45 year history and 35 percent of those charges contained retaliation claims. There have also been proposed expansions of reasons for FMLA leaves and paid leaves at the state and federal level plus increasing use of social media, electronic discovery and electronic evidence in employment litigations. Whistleblower claims and protections and enhanced penalties, damages and liabilities for violations of statutes and workplace regulations at both the local and federal level are also likely to continue to increase in 2012.
Additionally, new laws in New York, such as the Home Care Wage Parity Law and the New York Domestic Workers Law and new proposed federal regulations provide for increased wages and protections for home care aides or others who work in the home. New state and federal regulations for the hospitality industry have increased compensation, notice and documentation requirements for wages and tips paid to employees in hotels and restaurants.
The following articles will examine in more detail several of these new laws, new decisions and trends for 2012.
Reprinted with permission from the March 2012 issue of The Suffolk Lawyer. All rights reserved.
